Abstract: The foreign state immunity system is an intersecting field involving politics and law, diplomacy and justice. The Law of the People’s Republic of China on Foreign State Immunity (hereinafter referred to as the “Foreign State Immunity Law”) has achieved the shift from the absolute immunity policy to the restrictive immunity system and the transformation of China’s foreign state immunity system from a diplomacy-centered one to a judicial-centered one. Although the Foreign State Immunity Law as a whole is a procedural law enforced by the courts, the certifying documents issued by the Ministry of Foreign Affairs on factual issues related to acts of state should be accepted by the courts, and the Ministry of Foreign Affairs may provide an opinion for the court’s reference when it believes that the case involves major national interests. The Foreign State Immunity Law presumes that a foreign state enjoys jurisdictional immunity and provides for seven widely recognized exceptions, including waiver of jurisdictional immunity by a foreign state; proceedings arising out of a foreign state engaging in a commercial activity in the territory of China or a commercial activity outside the territory of China but causing a direct effect in the territory of China; proceedings arising out of a foreign state performing labor or service contracts in whole or in part in the territory of China; proceedings arising out of tort compensation caused by a foreign state in the territory of China; proceedings arising out of the ownership, possession, or use of property matters by a foreign state; proceedings arising out of matters such as intellectual property ownership and infringement in the territory of China involving a foreign state; and proceedings arising out of matters such as arbitration agreements, arbitral awards, and other reviews of arbitration involving a foreign state. The Foreign State Immunity Law provides for three exceptions to immunity from compulsory judicial measures, which means the property of a foreign state enjoys nearly absolute immunity from compulsory judicial measures.

Key Words: absolute immunity, restrictive immunity, jurisdictional immunity, immunity from compulsory judicial measures, acts of state, Foreign State Immunity Law

Author: Li Qingming, a research fellow at CASS Institute of International Law.

Source: 5 (2023) Chinese Review of International Law.